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Unsatisfied Claim and Judgment Fund Board v. Mosley

Decided: April 13, 1964.

UNSATISFIED CLAIM AND JUDGMENT FUND BOARD
v.
MOSLEY



Appeal from the Circuit Court for Anne Arundel County; Duckett, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

This is an appeal by the Unsatisfied Claim and Judgment Fund Board (Board) from an order passed by Judge Duckett on July 30, 1963, holding that the Board was given timely notice on behalf of the appellee of damages resulting from the use of an automobile, as required by Code (1957), Article 66 1/2, Section 154, as amended by Ch. 49, Section 1, of the Acts of 1960. (Later amended by Ch. 682, Section 1, of the Acts of 1961, but this amendment not applicable here.)

The appellee raises several questions, but the case may be determined by answering the two aspects of the following one: Was the appellee physically incapable of giving notice to the Board, and if so, was notice given on his behalf within a reasonable period?

On September 10, 1960, appellee was injured when the automobile in which he was riding collided with another. At the time of the accident, he was nineteen years of age; the operator of the other automobile, who was responsible for the collision, was an uninsured motorist.

As a result of the accident, the appellee sustained a comminuted fracture of the shaft of the right femur, and "avulsion compound" fracture of the right talus, a fracture of the left clavicle, a laceration of the right knee extending into the joints and a cerebral concussion. He was hospitalized for approximately six weeks, and subsequent to this hospitalization, he was taken to the home of Ella Carr, a friend, where his sister was living. He remained in a body cast for about two months. After the cast was removed, he remained in bed for six weeks to two months, after which he was able to ambulate on crutches, which he used for more than one month. On February 25, 1961, he appeared as a witness in the Circuit Court and testified. After

June 11, 1961, he received no further medical treatment for the injuries alleged in his notice of intention to make claim.

On or about September 27, 1961, Evelyn Hall contacted an attorney, requesting that he represent the appellee. The attorney filed a Notice of Claim with the Board, which was received by it on September 29, 1961. A letter of denial was received from the Board dated October 6, 1961, and a reply was made by letter dated October 11, 1961 advising the Board of the claim of disability being made on behalf of the appellee.

On September 10, 1962, appellee was transferred to Crownsville State Hospital by the Johns Hopkins Hospital, and was subsequently placed on convalescent leave on November 7, 1963. Examinations were made and tests taken which found that the appellee was "mentally defective-moderate level" and was suffering from an organic brain damage.

Suit was instituted on behalf of the appellee and a default judgment obtained against the uninsured motorist in the amount of $10,000. At the hearing on the application for payment, the court found that the appellee's failure to comply with the ninety-day notice provision was due to a physical disability and that notice was given on his behalf within a reasonable time and it ordered the appellant to pay the appellee the sum of $9,900.

There can be little doubt that the statute should be liberally construed so as to advance the remedy, due regard being had for the protection of the Fund and the realization of the essential legislative design. Mundey v. Unsatisfied Fund, 233 Md. 169, 195 A.2d 720; Giacobbe v. Gassert, 149 A.2d 214 (N. J.). And we have stated that the question of whether one is "physically incapable of giving notice" seems to present a question of fact. Mundey v. Unsatisfied Fund, supra. Also, see Giacobbe v. Gassert, supra. And in Mundey, we quoted with approval 2 Merrill, Notice, ยง 832, wherein the learned author states: "'* * * confinement to bed or to home should not be considered as conclusively excusing a failure to notify * * *. The test should be whether the notifier is incapacitated from attending to his affairs in general.'"

From the above, it is seen that the first aspect of our question presents a question of fact, which the trial court found in favor of the appellee; ...


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